TERMS
OF USE GOVERNING AGILENT'S SUREDESIGN PROGRAM AND TERMS
COVERING PURCHASE OF AGILENT MICROARRAY AND LIBRARY PRODUCTS
ORDERED THROUGH AGILENT'S SUREDESIGN PROGRAM
TO USE AND ACCESS THE SUREDESIGN PROGRAM AND/OR PURCHASE ANY
PRODUCTS THROUGH IT, YOU MUST FIRST AGREE TO THE TERMS OF THIS
AGREEMENT ("TERMS"). THIS AGREEMENT TAKES EFFECT
WHEN YOU CLICK AN "I ACCEPT" BUTTON OR, IF EARLIER,
WHEN YOU USE THE SUREDESIGN PROGRAM AND/OR ORDER ANY PRODUCTS
THROUGH THE SUREDESIGN PROGRAM. BY ORDERING, ACCESSING OR
USING THE SURDESIGN PROGRAM, YOU AGREE TO THE TERMS OF THIS
AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, PROMPTLY EXIT
THE SUREDESIGN PROGRAM AND DO NOT USE THE SUREDESIGN PROGRAM.
These Terms govern your use of Agilent's SureDesign microarray
and oligo library application web-based tool (the
"SureDesign Program") and your purchase of
microarrays and oligo libraries through the SureDesign
Program, including all use of all content, data, images,
information, restrictions, and other materials posted or
available through the SureDesign Program ("SureDesign
Materials"). These Terms are in addition to any other
agreement that you may have with Agilent, including Agilent's
standard terms of use for its company website found at Agilent's
standard terms of use and Agilent's privacy policy found at
Agilent's
Privacy Statement. To the extent there is a conflict between
those terms and these Terms, these Terms shall prevail. If you
breach any of these Terms, your authorization to use the
SureDesign Program automatically terminates and you must
immediately destroy any downloaded or printed materials.
TERMS
OF USE FOR SUREDESIGN PROGRAM
1.
Use of Program. Agilent grants you a limited, revocable,
non-exclusive right to access and use the SureDesign Program
solely for your personal, non-commercial, research use. You
will use the SureDesign Program solely for your personal,
non-commercial research use and will not: (i) license,
sublicense, sell, resell, rent, lease, transfer, assign, or
distribute the SureDesign Program or SureDesign Materials, or
otherwise commercially exploit or make the SureDesign Program
or SureDesign Materials available to any third party
(including any Agilent competitor); (ii) modify, reproduce,
publicly display, or create derivative works of the SureDesign
Program or SureDesign Materials except as expressly permitted
herein, (iii) use the SureDesign Program to store or transmit
any material that infringes any third party's copyright,
patent, trademark, trade secret or other proprietary rights;
(iii) use the SureDesign Program to store or transmit any
viruses, Trojan horses, worms, time bombs, or any other
similar malicious software, data, or programs; (iv) interfere
with or disrupt the integrity or performance of the SureDesign
Program, Agilent's website or any networks connected to
the SureDesign Program; (v) attempt to gain unauthorized
access to the SureDesign Program, materials, other accounts,
computer systems or networks connected to the SureDesign
Program; (vi) incorporate the SureDesign Program, the
SureDesign Materials or any portion thereof into any other
program or product, or (vii) derive or attempt to derive the
designs or structure of all or any portion of the SureDesign
Program by reverse engineering, disassembling, deconstructing,
decompiling, or any other means, except as permitted by law.
2. No license. Subject to the limited rights expressly granted
herein, all right, title and interest in and to the SureDesign
Program and SureDesign Materials , including all rights in and
to patents, copyrights, trademarks, and all other intellectual
property rights in the SureDesign Program and SureDesign
Materials will remain with Agilent. No rights are granted to
You hereunder other than as expressly set forth herein.
Without restricting the previous sentence, nothing herein
shall be construed as a right or license to use, make, have
made, sell, offer to sell, distribute, lease, or import,
Agilent microarrays or related products or services.
3. Biological Content. Agilent will maintain security
procedures with respect to access and maintenance of the
SureDesign Program to prevent the unauthorized disclosure of
the data that you submit to the SureDesign Program containing
references to oligonucleotide sequences provided for the
purpose of manufacturing a microarray or libraries of DNA or
RNA based oligonucleotides ("Biological Content").
By using the SureDesign Program, you authorize and grant
Agilent a limited, non-exclusive, royalty-free, perpetual,
world-wide license to reproduce, transmit, disclose, display
and use your Biological Content solely for the purpose of
enabling you to use the SureDesign Program, processing your
requests and transactions, policing sequences for indications
of unauthorized use, providing customer service/support and
maintaining and improving the SureDesign Program.
Notwithstanding the foregoing, Agilent may disclose
information to the extent (i) it is required to do so by law;
(ii) necessary to protect and defend the legal rights of
Agilent; or (iii) required in order to comply with a judicial
proceeding, court order, or government inquiry.
4. Safeguards. You acknowledge that security safeguards are
capable of circumvention with respect to the internet and
Agilent cannot guaranty that Biological Content or other data
will not be accessed by unauthorized persons overcoming such
safeguards. You agree that Agilent does not operate or control
the internet and acknowledge that viruses, worms or other
undesirable data or software or unauthorized users such as
hackers may attempt to obtain information from the SureDesign
Program. Agilent shall not be responsible for such activities
and you are solely responsible for the security and integrity
of your information and systems.
5. Non-Biological Content. Other than Biological Content and
personal data covered by Agilent's Privacy Statement, Agilent
will have no confidentiality obligations with respect to
information that you transmit or input into the SureDesign
Program ("Communications"). Agilent and its designees will be
free to copy, disclose, distribute, incorporate and otherwise
use the Communications for reasonable business purposes.
6. Publications (written or oral). Agilent supports
publication of your results in accordance with academic
publication standards in the field of gene-based research in
industry-recognized, peer-reviewed, scientific publications or
presentations. You are permitted to publish probe sequences
that you downloaded from use of the SureDesign Program so long
as you acknowledge your use of the SureDesign Program in such
publication in accordance with academic standards.
7. Publications (web-based) and Software Accessibility. You
may post the results of your queries to, or downloads from,
the SureDesign Program in connection with posting the results
of your research experiments on a non-commercial,
not-for-profit Web site, or include them within any
non-commercial, not-for-profit analysis software application
(e.g. "freeware"), openly accessible to the public at no
charge. With such publication, you must post an acknowledgment
of your use of the SureDesign Program and you may include a
link to the SureDesign Program. When publicly disclosing probe
sequence(s) on any such Web site or software application, you
agree to include the following disclaimer:
WARNING:
While publicly available, some uses of the information
contained here may be subject to third party intellectual
property rights, policies and/or restrictions. Information
possibly subject to such rights or restrictions includes but
is not limited to: (i)
naturally occurring DNA, RNA, and protein sequence(s), or
partial sequence(s), (ii) full or partial oligonucleotide
sequences and (iii) alien (i.e., non-natural) sequence(s).
Despite the presence of such information in public sources,
you may be prohibited from using or downloading this
information for certain purposes, such as manufacturing or
for populating commercial databases, websites, software or
other commercial repositories. It is solely your
responsibility to obtain any necessary rights, licenses
and/or consents which may govern your
intended use or re-use for the information you retrieve here.
8. Publication Restrictions. You may not use, post or copy any
results, downloads or any other material from the SureDesign
Program or SureDesign Materials (i) on a commercial or
for-profit Web site; (ii) within a commercial or for-profit
software application; (iii) for the purposes of commercial
manufacturing, (iv) for populating a commercial database or
other commercial repository; or (v) otherwise charge for
access to or use of any such results or material from the
SureDesign Program or SureDesign Materials, without Agilent's
prior written consent.
9. Liability. I. IN NO EVENT WILL AGILENT,
ITS SUBCONTRACTORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES (INCLUDING, BUT NOT LIMITED TO LOST PROFITS OR LOST
REVENUE, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON
CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION,
AGILENT WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND ARISING
FROM (I) YOUR INABILITY TO ACCESS OR USE THE SUREDESIGN
PROGRAM OR (II) ANY UNAUTHORIZED ACCESS, ALTERATION OF,
DELETION, CORRUPTION OR LOSS OF YOUR DATA. THIS EXCLUSION IS
INDEPENDENT OF ANY REMEDY SET FORTH IN THESE TERMS.
II. To the extent that limitation of liability is
permitted by law, Agilent's liability is limited to US
$1,000,000; except that Agilent has no obligation for warranty
claims for Microarray and Library Products beyond that which
is provided in Section 5a) below. The limitation set forth in
the foregoing sentence will not apply to damages for bodily
injury or death. III. The remedies in
these Terms are Customer's sole and exclusive remedies.
10. Indemnification. You agree to defend, indemnify and hold
harmless Agilent, its officers, directors, shareholders,
employees, successors, agents and assigns ("Agilent
Indemnitees") from any and all claims, losses, damages,
liabilities, costs and expenses incurred by Agilent
Indemnitees (including reasonable attorneys' fees) as a
result of any claim, complaint, suit, proceeding, cause of
action, judgment or adjudication related to or arising from
your (i) use of the SureDesign Program and SureDesign
Materials and the Microarray and Library Product(s) as defined
below; (ii) violation of any third party intellectual property
rights, or (iii) breach of any of these Terms.
11. Copies; Updates. Printing a copy of these Terms and
retaining a copy for your future reference is recommended.
Agilent may revise these Terms at any time, and by your
continued use of the SureDesign Program, you agree to be bound
by future revisions to these Terms. It is your responsibility
to periodically visit the "SureDesign Terms of Use"
to review and print the most current version.
12. Open Source Software. The Software may utilize third party
software made available under various open source software
licenses ("Open Source Components"). The terms
associated with the Open Source Components may be retrieved
via the following links:
You agree to comply with any and all applicable terms. In
addition to the warranty disclaimers contained in the terms
associated with the Open Source Components, Agilent makes the
following disclaimers regarding the Open Source Components on
behalf of itself, and the copyright holders, contributors, and
licensors of the Open Source Components: To the maximum extent
permitted by applicable law, the Open Source Components are
provided by the copy-right holders, contributors, licensors,
and Agilent "as is" and AGILENT MAKES NO WARRANTIES OR
REPRESENTA-TIONS OF ANY KIND, WHETHER WRITTEN OR ORAL,
EXPRESSED OR IMPLIED, AND AGILENT SPECIFICALLY DIS-CLAIMS ALL
WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT, regarding the Open Source Components. In no
event will the copyright owner, contributors, licensors, or
Agilent be liable for any direct, indirect, incidental,
special, exemplary, or consequential damages (including, but
not limited to, procurement of substitute goods or services;
loss of use, data, or profits; or business interruption),
however caused and on any theory of liability, whether in
contract, strict liability, or tort (including negligence or
otherwise) arising in any way out of the use of the Open
Source Components.
Agilent may store, use and manage your personal data, which
may include user names and e-mail addresses, for the purpose
of setting up accounts and granting you access to the
SureDesign Program, processing your transactions, providing
customer service and support, data analysis, marketing,
improving and maintaining the SureDesign Program, compliance
with applicable laws, quality control and reporting. By
accessing and using the SureDesign Program, you acknowledge
this collection of your personal data. For a full explanation
of how Agilent treats users personal data please see Agilentâs
Privacy Policy at http://www.agilent.com/home/privacy-policy.
TERMS
COVERING PURCHASE OF AGILENT MICROARRAY AND LIBRARY PRODUCTS
ORDERED THROUGH AGILENT'S SUREDESIGN PROGRAM
The
following Terms govern the sale of Microarray and Library
Products by Agilent Technologies, Inc., and its subsidiaries
("Agilent") ordered by you ("Customer")
through Agilent's SureDesign Program.
1.
DEFINITIONS
a)
"Affiliate" means any entity controlled by, controlling or
under common control with a party hereto, and will include
without limitation any company more than fifty percent (50%)
of whose voting stock or participating profit interest is
owned or controlled, directly or indirectly, by a party, and
any company that owns or controls, directly or indirectly,
more than fifty percent (50%) of the voting stock of a party.
b)
"Applicable Trade Term" means the term defined in Incoterms
2010, agreed by the Parties and documented in the quotation.
c)
"Biological Content" shall have the meaning ascribed
to it above.
d)
"Microarray and Library Product(s)" means Custom
Microarray(s), Custom DNA and RNA Oligo
Library/Libraries, and other product(s) that are manufactured
or configured to meet Customer requirements through the use of
Agilent's SureDesign site, sold hereunder.
e)
"Custom Microarray(s)" means the In Situ
Microarray(s) printed by Agilent to contain content that
Customer requests through the use of Agilent's SureDesign
site or otherwise.
f)
"Custom DNA and RNA Oligo
Library/Libraries" means the DNA and RNA oligonucleotide
library/libraries manufactured by Agilent to contain content
that Customer requests through the use of Agilent's SureDesign
site or otherwise.
g)
"Delivery" means the date when Agilent places the
Microarray and Library Product(s) at Customer's or Customer's
Representative's disposal at the address specified in
Customer's purchase order in accordance with the Applicable
Trade Term.
h)
"In Situ Microarray(s)" means nucleic acid
microarrays fabricated by Agilent in which oligonucleotides
or oligonucleotide
analogs are synthesized from individual nucleotides or
nucleotide analogs on a substrate, to be used as probes in
research or development activities.
2.
ORDERS FOR MICROARRAY AND LIBRARY PRODUCTS
a)
The following Terms govern the sale of Microarray and Library
Products by Agilent Technologies, Inc., and its subsidiaries
("Agilent") ordered by you ("Customer") through Agilent's
SureDesign Program. Microarray and
Library Products by signing and delivering to Agilent a
purchase order for the prices set out in an Agilent-furnished
quotation or later amendments thereto. The terms and
conditions of these Terms for SureDesign will prevail over the
terms and conditions of any such purchase order.
b)
Title, risk of loss and damage to Microarray and Library
Products will pass to Customer at the designated address
specified in Customer's purchase order in accordance with the
Applicable Trade Term. If special packing or shipping is
agreed upon, such additional charges will be billed separately
to Customer.
c)
Customer's purchase order will specify Microarray and Library
Products to be purchased and delivered in the quantities, at
the times and for the prices quoted.
d)
Unless otherwise indicated, prices include shipping and
handling charges to the address specified in accordance with
the Applicable Trade Term. Prices are valid for the period
indicated on the quotation.
e)
All orders are subject to acceptance by Agilent. Orders are
governed by the applicable trade term specified on the
quotation or agreed to by Agilent as defined in Incoterms
2010. Cancellation of orders or rescheduling shipment for
Microarray and Library Products will be subject to Agilent's
approval, which approval will not be unreasonably withheld.
Product returns will also be subject to Agilent's
approval and return/refurbishment charges.
f)
Agilent will make reasonable efforts to meet Customer's
Delivery and shipment requirements. If Agilent is unable to
meet Customer's Delivery and shipment requirements,
alternative arrangements may be agreed. In the absence of such
agreement, Customer's sole remedy is to cancel the order.
g)
Payment is due thirty (30) days from Agilent's invoice date.
Payment terms are subject to Agilent credit approval. Agilent
may change credit or payment terms at any time should
Customer's financial condition or previous payment record so
warrant. Agilent may discontinue performance if Customer fails
to pay any sum due, or fails to perform under this or any
other Agilent agreement if, after ten (10) days written
notice, the failure has not been cured.
3.
RESTRICTIONS
a)
Customer has the right to use Microarray and Library Products
in accordance herewith for generating or deriving data and for
analysis of the same for internal use only. Microarray and
Library Products provided herein are not approved for use in
diagnostic procedures and Customer (i) acknowledges that the
Microarray and Library Products provided herein are not
approved for use in diagnostic procedures and (ii) is
responsible for obtaining any necessary regulatory approvals.
Customer agrees that if it elects to use Microarray and
Library Products for a purpose that would subject Customer or
any Microarray Product to the jurisdiction of regulatory laws
or other applicable law, if any, Customer shall be solely
responsible for obtaining any required approvals and otherwise
ensuring that its use of the Microarray Product complies with
such laws. Customer is not permitted to use any Microarray and
Library Products in any manner not expressly authorized by
these Terms. Furthermore, Customer will NOT: (i)
divert Microarray and Library Products labeled Research Use
Only products for purposes other than Research Use Only; rent,
sell, assign, lease, share, sublicense or otherwise transfer
the Microarray and Library Products or any portion thereof;
(ii) derive or attempt to derive the microarray designs or
structure of all or any portion of the products by reverse
engineering, disassembly, decompilation or any other means;
(iii) remove (strip) the oligonucleotides from any In Situ
Microarray; (iv) use In Situ Microarray(s) or any part thereof
as template in any DNA or RNA in vitro or in vivo synthesis or
assembly reaction including but not limited to a linear or
exponential amplification reaction or gene assembly; (v) use
In Situ Microarray(s) in more than one hybridization reaction;
or
(vi) file patent applications based on the Agilent products,
excluding Biological Content, without the express written
consent of Agilent. Nothing herein will be construed to
restrict Customer's rights to use any results of or
discoveries made in the performance of research conducted
using the Microarray and Library Products. Customers may only
purchase Oligo Libraries through Agilent's Collaborative
Technology Program (CTP) which may permit ordering from
Agilent's SureDesign Program. Such SureDesign customers shall
be governed both by these SureDesign Program Terms and
Conditions and the CTP terms and conditions, however where the
CTP terms of the CTP Agreement contradict the SureDesign Terms
and Conditions, the CTP contradicting terms shall control.
b)
Agilent owns, has rights to or controls all intellectual
property rights, including copyrights, patents, trade secrets,
trademarks, service marks, trade names and the like in the
Microarray and Library Products to the extent excluding
Biological Content. Agilent agrees that Biological Content
will be segregated and isolated from Agilent's own probe and
microarray design efforts. Notwithstanding anything to the
contrary, any oligonucleotide, nucleotide sequence or probe(s)
that is manufactured/obtained/designed by Agilent shall not be
considered by Customer as proprietary to it, or as Biological
Content, so long as Agilent did not access Biological Content
files.
4.TAXES.
Prices exclude any legally applicable sales, value
added or similar tax which will be payable by Customer in
addition to the purchase price, if applicable. If exemption
from taxes is claimed, Customer must provide a certificate of
exemption.
5.
WARRANTIES AND ACKNOWLEDGEMENTS
a)
Agilent hereby warrants to Customer the functionality of
Microarray and Library Products as articles of manufacture
(workmanship) during the period expiring ninety (90) days
after Delivery to Customer ("Warranty Period").
Warranty claims not made in a written form and subsequently
received by Agilent within the applicable warranty period
identified in the immediately preceding sentence will be
deemed waived.
b)
The warranties above are solely for the benefit of Customer,
and Customer will have no authority to extend such warranties
to any other Affiliate or Entity without Agilent's prior
written consent.
c)
If Agilent receives notice of defects or non-conformance
during the Warranty Period, Agilent will replace the affected
product. If Agilent is unable, within a 30 day period after
receipt of notice of defects to replace the affected product,
Customer will be entitled to a refund of the purchase price.
d)
Notwithstanding Section 5a) above, the warranty provisions
will not apply to, and Agilent will not be responsible for,
any defects caused by or resulting from: (i)
improper installation or use of the Microarray and Library
Products by Customer, its employees or agents, (ii) failure by
Customer or its employees or agents to observe any
instructions of Agilent or its representatives, (iii) the
negligent acts or omissions of Customer or its employees or
agents, (iv) unauthorized alterations, adjustments or
modifications by Customer, its employees or agents, to any of
the Microarray and Library Products, (v) failure or
malfunctioning of software, hardware, or other equipment or
facilities not delivered or licensed by Agilent, or (vi) abuse
or misuse of the Microarray and Library Products, or any
damage thereto after the date of Delivery to Customer. All
biological validation activities associated with use of Custom
Microarrays are the responsibility of Customer.
e)
Agilent's liability with respect to a breach of warranties
will be limited to the express warranty and related remedy
provisions set forth in and limited by Section 5. Except for
any claims it may have under the express terms of Section 6a)
above, Customer waives any and all claims that it may have
against Agilent, its licensors or suppliers arising out of the
performance or nonperformance of the Microarray and Library
Products. Furthermore, Agilent shall not be responsible for
use of the Microarray and Library Products for any failure by
Customer to comply with applicable foreign, federal, state or
local laws or regulations, or failure by Customer to use audit
controls or back-up and security procedures. Agilent will not
be responsible for any failure by Customer to use due care in
the use and validation of the results produced by the
Microarray and Library Products.
f)
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH AND LIMITED IN
SECTION 5, AGILENT EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
MISCELLANEOUS TERMS
1)
Agilent will not be liable for performance delays or for
non-performance, due to causes beyond its reasonable control.
2)
If either party becomes insolvent, is unable to pay its debts
when due, files for bankruptcy, is the subject of involuntary
bankruptcy, has a receiver appointed, or has its assets
assigned, the other party may cancel any unfulfilled
obligations.
3)
Customer who exports, re-exports, or transfers products,
technology or technical data purchased hereunder assumes all
responsibility for complying with applicable U.S. and all
other laws and regulations ("Applicable Laws"), and
for obtaining required export authorizations. Customer
expressly agrees not to sell or otherwise transfer products,
technology or technical data to companies or persons on the
Denied Parties List and Specially Designated Nationals and
Blocked Persons List, or to any other prohibited parties or
restricted destinations listed in Applicable Laws, unless
properly authorized by the appropriate government(s). Agilent
may suspend performance if Customer is in violation of
Applicable Laws. Further information on restricted
destinations can be obtained from http://www.bis.doc.gov
4)
Disputes arising in connection with these Terms will be
governed by the laws of the State of California.
5)
Provisions herein which by their nature extend beyond the
termination of any sale Microarray and Library Products will
remain in effect until fulfilled.
6)
Neither party's failure to exercise any of its rights under
these Terms will be deemed a waiver or forfeiture of those
rights.
7)
To the extent that any provision of these Terms is determined
to be illegal or unenforceable, the remainder of these Terms
will remain in full force and effect.
8)
The United Nations Convention on Contracts for the
International Sale of Goods will not apply to these Microarray
Terms.
9)
Microarray and Library Products are not specifically designed,
manufactured or intended for sale as parts, components or
assemblies for the planning, construction, maintenance or
direct operation of a nuclear facility. Agilent shall not be
liable for any damages resulting from such usage.
10)
These Terms constitute the entire agreement between Agilent
and Customer, and supersede any previous communications,
representations or agreements between the parties, whether
oral or written, regarding the subject matter and transactions
conducted hereunder. Customer's additional or different terms
and conditions will not apply. Customer's purchase of
Microarray and Library Products will constitute Customer's
acceptance of these Terms, which may not be changed except by
an amendment signed by an authorized representative of each
party.
Revision
Date of SureDesign Terms of Use: October 2018
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